DANIEL PAUL RICHMANN, PETITIONER V. UNITED STATES OF AMERICA
No. 88-1349
In The Supreme Court Of The United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-13) is reported at
860 F.2d 837.
JURISDICTION
The judgment of the court of appeals (Pet. App. 14) was entered on
October 26, 1988. A petition for rehearing was denied on December 13,
1988. Pet. App. 15. The petition for a writ of certiorari was filed
on February 10, 1989. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the government's conduct in this case was so outrageous
as to violate the Due Process Clause.
2. Whether the district court abused its discretion when, at a
post-trial hearing, it determined that a third-party contact with a
juror was harmless and that the juror need not be called for
questioning.
STATEMENT
Following a jury trial in the United States District Court for the
District of Minnesota, petitioner was convicted of conspiring to
distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced
to 18 months' imprisonment. The court of appeals affirmed.
1. In December 1985, petitioner, who had a history of cocaine
abuse, contacted a Drug Enforcement Administration (DEA) agent. He
told the agent that he would be willing to provide the DEA with the
names of large-scale cocaine dealers in the Minneapolis-St. Paul area.
Petitioner was subsequently contacted in February 1986 by another
agent. Petitioner met with that agent and agreed to provide the DEA
with information about Vasilios Loukas, one of petitioner's
co-defendants and a large-scale drug dealer in the area. Pet. App. 2.
To test petitioner's reliability, the agent asked petitioner to
introduce a drug dealer to another undercover DEA agent. Petitioner
arranged the introduction and the agent purchased a small amount of
cocaine from the dealer. In early March 1986, however, the DEA
learned from another informant that petitioner had discussed his DEA
involvement with persons in the drug business. The agency therefore
decided not to use petitioner as an informant. It did not, however,
tell petitioner that he was no longer working with the DEA because to
do so would have compromised the informant who had reported on
petitioner's activities. From March 1986 until his arrest in December
1986, petitioner continued to associate and deal with Loukas in the
distribution of cocaine. Pet. App. 2-3; Gov't C.A. Br. 3.
On December 18, 1986, federal officials executed a search warrant
at petitioner's office while petitioner was present. Both before and
after he was advised of his Miranda rights, petitioner offered a
substantial amount of information about his dealings with Loukas and
told officers where they could find physical evidence of these
activities in the office. Petitioner was later arrested and indicted.
Pet. App. 2-4. In his defense, petitioner argued that the DEA had
entrapped him. Pet. App. 12. The jury returned a guilty verdict.
2. After his conviction, petitioner moved for a new trial on the
ground of juror misconduct. Petitioner claimed that after testifying,
one of his character witnesses was approached by a man in the parking
garage adjacent to the courthouse. The man allegedly told the witness
that he had spoken to one of the jurors and that the juror had said he
thought petitioner was being taken advantage of and being "taken down
the primrose lane" by the government. The district court conducted a
hearing at which the witness related the incident. The court then
refused petitioner's request to question the juror about the incident,
and denied the motion for a new trial. Pet. App. 4-5.
3. The court of appeals affirmed. The court found that the
evidence was sufficient to prove that petitioner had criminal intent
to commit the offense, and that the evidence of predisposition was
sufficient to justify the jury's rejection of petitioner's defense of
entrapment. Pet. App. 11-12. The court of appeals also rejected
petitioner's claim of jury misconduct, finding "that the misconduct
complained of, if any, was harmless to (petitioner)." As the court
explained, "(n)o information appears to have been conveyed to any
member of the jury," and "if (petitioner's) witness is believed, it
appears that this juror was expressing an idea which was favorable to
(petitioner)." Pet. App. 6.
ARGUMENT
1. Petitioner first contends (Pet. 8-14) that the DEA's failure to
inform him that he would no longer be used as an informant constituted
outrageous government conduct that violated the Due Process Clause.
This claim is without merit.
First, petitioner failed to raise his claim of outrageous
government conduct before the court of appeals; he is therefore
precluded from raising the issue now. United States v. Lovasco, 431
U.S. 783, 788 n.7(1977). In his court of appeals brief and his
petition for rehearing, petitioner argued only that the evidence was
insufficient to support his conviction and rebut his defense of
entrapment. Contrary to his contention (Pet. 13-14), petitioner never
made an "outrageous conduct" argument below, nor did he cite any
authority to support that legal theory. See Richmann C.A. Br. 17-25;
Richmann Pet. for Reconsideration 6-15. His passing remarks
criticizing the government's conduct (see Pet. 13-14 (quoting
remarks)) were all made in the context of his "sufficiency of the
evidence" argument; they did not apprise the court of appeals of any
other legal claim (see Pet. App. 11-12), and they cannot be construed
at this late date as preserving an independent constitutional issue.
In any case, petitioner's due process claim fails on its facts.
The due process defense is a very narrow one. Prosecution is barred
only when the "conduct of law enforcement agents is so outrageous that
due process principles would absolutely bar the government from
invoking judicial processes to obtain a conviction," United States v.
Russell, 411 U.S. 423, 431-432 (1973), and only when "the government
activity in question violates some protected right of the defendant,"
United States v. Payner, 447 U.S. 727, 737 n.9 (1980) (emphasis in
original). As one court has noted, the government misconduct must be
"so grossly shocking and so outrageous as to violate the universal
sense of justice." United States v. Aguon, 851 F.2d 1158, 1171 (9th
Cir. 1988); see also United States v. Duvall, 846 F.2d 966, 973 (5th
Cir. 1988) ("a due process violation will be found only in the rarest
and most outrageous circumstances"); United States v. Shoffner, 826
F.2d 619, 626 (7th Cir.), cert. denied, 108 S. Ct. 356 (1987).
The failure of the DEA to tell petitioner that he was no longer
being used as an informant was not "grossly shocking" or "outrageous"
in light of the circumstances surrounding the investigation.
Petitioner himself began his relationship with the DEA, offering his
services as an informant. Pet. App. 2. After beginning to work with
him, the DEA learned that petitioner had compromised the identity and
safety of a DEA agent by describing the agent to other people in the
cocaine business. Pet. App. 3. The DEA therefore decided not to use
petitioner as an informant; it could not, however, notify petitioner
of its decision, because to do so would have jeopardized the other
informant who had reported on petitioner's activities. Gov't C.A. Br.
3; see Pet. App. 2-3.
Under these circumstances, the government's conduct was not
improper, let alone "so grossly shocking and so outrageous as to
violate the universal sense of justice." See United States v. Arteaga,
807 F.2d 424, 426 (5th Cir. 1986) ("The appropriateness of the
government's conduct turns * * * on the needs of law enforcement.").
No court has reversed a conviction on such a showing, and courts have
regularly declined to find more plausibly blameworthy government
conduct to be sufficiently "outrageous" to justify reversal. See,
e.g., United States v. Ramirez, 710 F.2d 535, 539-540 (9th Cir. 1983)
(no due process violation where police may have coerced or unlawfully
induced informant's cooperation, and where they misled him after
concluding he was a double agent, in order to gain as much information
from him as possible); see also United States v. Simpson, 813 F.2d
1462, 1464-1468 (9th Cir.) (no due process violation where FBI
continued to use informant after learning that she was exploiting
sexual relationship with defendant in order to get information from
him), cert. denied, 108 S. Ct. 233 (1987); United States v. Tobias,
662 F.2d 381, 385-387 (5th Cir. 1981) (no due process violation where
police supplied formula, some of ingredients, and step-by-step advice
on manufacturing drug to defendant), cert. denied, 457 U.S. 1108
(1982). /*/
2. Petitioner also contends that the district court abused its
discretion when it ruled that a third party's contact with a juror did
not require reversal.
Any "private communication * * * with a juror during a trial about
the matter pending before the jury is * * * deemed presumptively
prejudicial." Remmer v. United States, 347 U.S. 227, 229 (1954).
Nonetheless, the "presumption is not conclusive," although "the burden
rests heavily upon the Government to establish * * * that such contact
with the juror was harmless to the defendant." Ibid. The "allowance
or refusal of a new trial (on the basis of improper juror
communications) rests in the sound discretion of the court to which
the application is addressed." Mattox v. United States, 146 U.S. 140,
147 (1892).
Here, the government met its burden to establish that the contact
between the third party and the juror was harmless. As the court of
appeals underscored (Pet. App. 5-6), it did not appear that the juror
who may have had the improper contact received any information from
the third party that could have been conveyed to the other members of
the jury. Pet. App. 6. As the court observed, "(t)here was no
evidence that this particular juror, or any other member of the panel,
had been exposed to prejudicial information or evidence other than
that which was introduced at the trial." Ibid. In fact, the comments
made by the juror to petitioner's character witness "express(ed) an
idea which was favorable to (petitioner)" and "detrimental to the
government." Ibid. Refusal to grant a new trial on these grounds did
not constitute an abuse of discretion.
Nor can this conclusion be challenged on the ground that, at the
hearing on the claim of juror misconduct, the district court did not
allow defense counsel to question the juror who had supposedly spoken
to the third person. See Pet. 17-18. A trial court "has a great
responsibility and wide discretion in dealing with a motion for a new
trial based on allegations of juror misconduct." United States v.
Jones, 707 F.2d 1169, 1173 (10th Cir.), cert. denied, 464 U.S. 859
(1983); accord United States v. Hendrix, 549 F.2d 1225, 1227 (9th
Cir.), cert. denied, 434 U.S. 818 (1977); see 3 C. Wright, Federal
Practice and Procedure Section 554, at 261-262 (2d ed. 1982). The
district court in this case conducted a hearing at which it took the
testimony of the third party who was the source of the report of juror
misconduct. As the court of appeals observed (Pet. App. 6-8), there
was no evidence adduced at the hearing to suggest that the juror was
improperly influenced or that information prejudicial to petitioner
was communicated to the jury. In these circumstances, and in light of
the need to protect the integrity of the deliberative process, the
district court did not abuse its discretion by refusing to permit the
juror to be questioned about the effect of the contact with the third
party on the jury's deliberations.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
WILLIAM C. BRYSON
Acting Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
GEOFFREY R. BRIGHAM
Attorney
MAY 1989
/*/ Petitioner's claim is especially unpersuasive here, because
petitioner had been advised that if he became involved in anything
illegal that was not under the supervision and control of the DEA, he
could be arrested. Petitioner was specifically told that he was not a
police officer and that he had no police function. He was instructed
that if he were to become involved in a criminal enterprise of any
type, he was required to notify the DEA so that the agency could
control the situation. Gov't C.A. Br. 1-2. The actions that
petitioner took after the DEA had ceased to use him as an informant,
including the laundering of narcotics money, were done without
notifying the DEA or obtaining its approval. Gov't C.A. Br. 12-14.